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Two New Jersey lawyers spent part of last week flying between Newark and Peoria, Ill., attempting to persuade a federal judge there to free an “enemy combatant” held incommunicado in a military jail. Their mission did not play well in Peoria: The judge ruled from the bench July 28 that he lost jurisdiction when the detained man was transferred to a military brig in South Carolina. The lawyers, Lawrence Lustberg and Mark Berman of Newark, N.J.’s Gibbons, Del Deo, Dolan, Griffinger & Vecchione, are looking at several options to contest the dismissal of their habeas corpus petition. The case — Al-Marri v. Bush, 03-1220 — underscores the emergence of New Jersey lawyers as key players on the post-Sept. 11 legal stage. Two of the three “enemy combatant” cases — Peoria’s Ali-Al-Marri and alleged “dirty bomber” Jose Padilla — are represented by New Jersey lawyers. In the third case, involving Yaser Hamdi, an idealistic nonlawyer from Ocean County filed a “next friend” habeas petition on behalf of the man arrested on the battlefield in Afghanistan. Arguably, New Jersey now offers more lawyers and judicial officers with hands-on experience in terror issues than any other state. The state has frequently been used as a petri dish for new legal processes since the attacks on the World Trade Center and the Pentagon. For instance: � U.S. immigration courts in Newark were used to secretly process the bulk of those detained on visa violations in the Sept. 11 probe. Litigation to open the hearings was successfully defended by the Department of Justice in the 3rd U.S. Circuit Court of Appeals. � Northern New Jersey jails were used to secretly house those detained in the Sept. 11 investigation, and litigation over the detainees’ identities was successfully defended by the Justice Department in state court. � The Sept. 11 investigation was supervised by Assistant Attorney General Michael Chertoff, head of the U.S. Criminal Justice Division, who is now a 3rd Circuit judge. � The U.S. Attorney’s Office in Newark brought novel prosecutions against dozens of Middle Eastern students who had allegedly cheated on English-language tests they needed to take to stay in the country. � The Passaic County Court held unusual closed-door bail hearings for a man who allegedly sold identification cards to at least one of the Sept. 11 hijackers. � The state Administrative Office of the Courts designated nine members of the state bench as “domestic security judges.” Although their exact duties are unclear, their role is to handle cases in the event of a state of emergency. “It’s not a coincidence that New Jersey lawyers, particularly both of us, got the case,” says Lustberg. Although based in New Jersey, Lustberg, Berman and Padilla’s lawyer, Jersey City solo practitioner Donna Newman, all practice in New York’s Southern District. That’s the district where Padilla and Al-Marri were first held and where Newman was assigned to Padilla on a per-diem basis by the federal indigent client program. Lustberg’s representation of Al-Marri is an example of the way Sept. 11 business — if it can be called that — begets more Sept. 11 business. Al-Marri is a foreign student at Bradley University in Peoria and Lustberg already represents a number of Saudi Arabian defendants in the English test cases. “The Qatari embassy picked up on the fact that we had done some of that work,” he says, noting that all foreign embassies provide counsel to foreign nationals charged with crimes. Other state attorneys have seen a similar snowball effect in their practices. In the early days after Sept. 11, most lawyers were afraid of representing the Muslims detained in the mass arrests that followed, worried that the taint of terror might drive away other clients. For most lawyers, that client loss never happened. Clifton, N.J., solo practitioner Sohail Mohammed, for instance, jumped right in immediately. He ended up representing more than 20 of the 766 “special interest” cases, a greater number than any other lawyer in the country. Newark solo practitioner Regis Fernandez had a similar experience. Initially hesitant, he eventually ended up representing more than a dozen jailed Muslims. And by simply being on the opposite side of the table in immigration-related habeas actions and deportation hearings, lawyers for the U.S. Attorney’s Office and the Homeland Security’s Directorate of Border and Transportation Security have gained a similar increase in experience. SIMILARITY TO LINDH CASE New Jersey’s association with the third enemy combatant case, Hamdi v. Rumsfeld, 2:02CV348, is, however, entirely coincidental. Christian Peregrim, a political science graduate from Rutgers University in Newark, filed a “next friend” habeas brief when he realized that Hamdi was being denied access to counsel while being held incommunicado. Peregrim was struck by the disparity in treatment of Hamdi and John Walker Lindh, the so-called American Taliban, even though the fact patterns in both their cases are similar: Both are U.S. citizens, both were caught on the wrong side of the battlefield in Afghanistan and both were shipped to the United States instead of being held at Guantanamo Bay. Lindh was charged in civilian criminal court and offered a lawyer and a jury trial. Hamdi, however, has been held without access to anyone except his interrogators. Although Hamdi is an American, Peregrim noticed that he had no other relatives in the country, and thus no one to speak up for him. “I basically just began filing without any knowledge,” Peregrim says. “Yes, he might be a terrorist, but given that he’s a U.S. citizen, he needs a jury to decide that. He was not given a jury. We don’t even know what his crime was, as far as we know he was in the wrong place at the wrong time and that’s as far as it’s gone. It just seemed preposterous to me when I first heard that the executive could do this.” Peregrim also decided to keep a low profile about his support of Hamdi, fearing a backlash from his neighbors. He declines to say where he lives, other than that he grew up in Toms River, N.J. He also declines to give his age beyond saying that he’s in his early 20s. And like many recent graduates, he is “between projects.” The enemy combatant cases hardly add up to a new bar committee, but in the event that the designation is used again by the president, it seems logical that lawyers will turn to New Jersey for assistance on habeas petitions in the same way that Lustberg, Berman and Newman have compared notes on their cases. One of the most interesting aspects of the combatant cases is the way the Department of Defense has used a scattershot approach in its application of the designation. In addition to Al-Marri, Hamdi and Padilla, the designation could have been applied to Lindh and the man accused as the 20th hijacker, Zacarias Moussaoui. In each case, the combination of facts about their citizenship, whether they were arrested abroad or in the United States, and whether they were engaged in active combat, is different. Lustberg and Berman hope to use those differences to Al-Marri’s advantage. They note that he was not captured in battle, nor has he been accused of any link to Sept. 11. As such, Lustberg argues, the president unlawfully overstepped the power granted to him by Congress to pursue those responsible for the Sept. 11 attacks. “The congressional authority talks about taking force against people involved in the Sept. 11 attacks; our client was not involved in the Sept. 11 attacks and in their statements to the press they explicitly recognized that,” Lustberg says. “We have an issue that nobody else has litigated.” Indeed, news reports show that on June 23, the FBI’s assistant director for counterterrorism, Larry Mefford, told a room full of reporters that Al-Marri was not linked to Sept. 11. Prior to that date, the U.S. Attorney’s Offices in the Southern District of New York and the Central District of Illinois alleged only that Al-Marri had used false documents to open a bank account and lied to the FBI about two things: making phone calls to an acquaintance of Moussaoui and the date of his first entry into the United States. Al-Marri was initially held as a material witness in New York before being shipped to Peoria after a grand jury indictment there. A week and two days before a suppression hearing in the criminal case was to occur, Al-Marri was declared an enemy combatant. The Justice Department had the charges withdrawn and Al-Marri was bundled onto an airplane headed south. He has not been seen since. The judge who dismissed the criminal charges and the habeas case commented July 28 on the timing of the events: “Normally the race is to the courthouse,” said U.S. District Judge Michael Mihm. “Here the race was from the courthouse.” “We were told the plane was here and ready. I don’t know whether the engines were running, but we were told he would be immediately transferred to the military,” the judge said. “Was that seemly?” The same question was put to Illinois U.S. Attorney Jan Paul Miller, whose office handled the criminal case and is defending the habeas petition. “I’m not going to respond directly to the judge’s comments,” he says. “We moved as quickly as possible after the president signed the order … it is incumbent upon the district having an enemy combatant case at that point to dismiss the criminal case as soon as possible.” Miller denies the implication of the judge — and the direct accusation of Lustberg — that Al-Marri was declared an enemy combatant because he was going to mount a troublesome defense that may have required cross examination of federal intelligence sources. “That’s not the case at all,” Miller says. “The only thing they had done in this district was file a bunch of pretrial motions, which they had filed and lost in New York, so there was nothing that developed out here in the criminal cases that gave us any pause.” Lustberg says he plans to file a motion today for reconsideration of Mihm’s July 28 ruling in the Al-Marri case.

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